NEW YORK (AP) — New York City firefighter Tom O'Brien had been battling a blaze in Manhattan for two hours on Oct. 27, 1935, and knew something was wrong as soon as he got back to the firehouse.
Reports indicate he complained of a booming headache and decided to "self-medicate" with a bottle of booze before heading to his bunk to sleep. He never woke up.
Now, 82 years later, O'Brien's heirs are going to court seeking an honor they say he was unfairly denied: a finding of a line-of duty death and a place among the more than 1,100 names on the department's memorial wall. They say the strongest evidence is an autopsy at the time that found O'Brien had a skull fracture, apparently from falling debris in the fire.
"This isn't a money issue. I don't want a nickel," says 68-year-old Arthur O'Brien, who has been trying for years to have his grandfather recognized. "The autopsy says he died of a fractured skull, so put his name on the wall. People make mistakes. Just say you'll make it right."
The department hasn't budged; they say there is scant evidence to overturn a decades-old decision.
O'Brien's attorney, former Nassau County Surrogate's Court Judge Edward McCarty, said because O'Brien was a widower, five of his six children were sent to live in an orphanage in Staten Island, necessitated because their father did not qualify for benefits from a line-of-duty death.
In correspondence with New York City Fire Department officials, Arthur O'Brien was told that despite exhaustive searches for records, there was no clear indication of what went into the decision to not deem his grandfather a line-of-duty casualty.
It's a decision that baffles his heirs, who refer to O'Brien by his family nickname "Fireman Tom."
"My siblings and I always assumed that Fireman Tom was considered one of the fallen and therefore memorialized with his other firefighters," says O'Brien's sister, Betty Seibold. "We want to share our joy and celebrate Fireman Tom's recognition and placement on the wall as one of the bravest in the FDNY."
An FDNY spokesman did not respond to emails for comment, but a department attorney told McCarty in June that an autopsy report indicating O'Brien died of a fractured skull and lacerations of the brain would have been considered in 1935.
"FDNY is not in a position to overturn the decision made by a fire commissioner who had the benefit of all available information, almost 82 years ago," Alison Chen wrote in June. "FDNY's final determination on Firefighter O'Brien's death was rendered in 1935."
McCarty has filed a notice of claim and other legal action against New York City, the first steps in what could become a lawsuit. Nick Paolucci, a spokesman for the New York City Law Department, said "the matter is currently under review by the city."
Dr. Michael Baden, the former New York City medical examiner who has been an expert witness in countless homicide cases, discounted any notion that a large amount of alcohol found in O'Brien's system contributed to his death; McCarty and his clients suspect the alcohol may have been deemed a reason for the FDNY's ruling in 1935.
"He didn't die from the alcohol," Baden said. "The cause of death clearly would be what the family indicates."
Instead, Baden cited the autopsy that noted that O'Brien's skull fracture was "incurred in fire at 349-51 West 26 St., October 27, 1935, in some unknown manner."
"Clearly, there is evidence that he was in the fire and evidence that he suffered a severe lethal injury to his head and that would not necessarily cause loss of consciousness right away," Baden said. "He suffered a lethal head injury consistent with a beam falling on his head."
This story has been updated to correct a reference to O'Brien from O'Neill.